Dismantling the military justice system will not reduce sexual assault

Congress appears poised to remove military commanders from some or all military justice decisions. The lawmakers are motivated by the best of intentions: to reduce sexual assaults within the military. But there is no evidence to suggest that the proposed remedy will work.

Indeed, there is reason to believe that the proposal now on the table could actually be less effective than the current system. It is not too late to pause and reconsider.

Sexual assault is a cancer that eats at the heart of trust and military readiness. Over the years, Congress has tried to address the problem with over 250 legislative provisions, ranging from providing trained victims’ counsels, confidential reporting mechanisms, transfer programs for victims and enhanced training for military members. 

Yet assault numbers remain stubbornly high. Last year, more than 6,290 sexual assaults were reported. (Disappointing though that number is, it should be noted that female college students have a 51 percent greater chance of being sexually assaulted than college-aged woman serving in the military.)

Sen. Kirsten Gillibrand (D-N.Y.) has long insisted that the key to solving the problem is to take away commanders’ authority to press charges in sexual assault cases and give that responsibility to military lawyers instead. Indeed, her Military Justice Improvement and Increasing Prevention Act proposes to remove all military felony cases from the purview of commanders. 

The premise behind her proposal is that victims will have more faith that they will get justice – and therefore be more likely to report crimes – if outside lawyers, rather than their commanders, make the decision on how their cases will be handled.

Yet this premise lacks any supporting evidence. Australia, the United Kingdom, Israel and Canada have all made the switch sought by Gillibrand, and research shows that it produced no reduction in sexual assaults.

While there is no evidence that taking commanders out of prosecutorial decisions will reduce sexual assaults or other crimes, there is plenty of reason to believe it will make things worse. 

Military commanders are responsible for the readiness of their units, and good order and discipline are key elements of that readiness. Transferring to some distant lawyer their decision-making authority on whether to press charges will weaken their power to maintain discipline in their units. 

When I was a commander, I sent several sexual assault cases to court-martial, even though the lawyers said we had only a slight chance of winning. I did so to demonstrate that the command would do everything possible to hold sexual predators accountable. Were those decisions made by a military lawyer, I doubt they would have gone to trial; lawyers – unlike commanders – are bound by ethics rules and cannot bring a case to trial unless there is a strong likelihood of success. Absent a commander able to push the process forward, fewer cases would be referred to trial, and a weaker message would be sent to the troops.

The nation’s most senior military officers have expressed significant reservations about Gillibrand’s proposal — despite pressure from the administration to toe the line. Typical was the warning from Army chief Gen. James McConville that “removing commanders’ case disposition authority would be detrimental to the good order and discipline required for effective warfighting.”

Gillibrand, however, is having none of it. She dismissed the senior officers’ concerns out of hand, retorting that “the chain of command has always fought to protect the status quo, just as they are doing here.”

Yet these are leaders who have dedicated their professional lives to making the military better. Many have sons and daughters currently serving. Their professional opinions deserve consideration.

Lawmakers also would do well to consider whether the military justice system is really broken. Its conviction rate for sexual crimes is much higher than on the civilian side. Indeed, conviction rates for the military are eight times higher than in Gillibrand’s home state of New York. Where, one may wonder, is the “justice improvement act” for New York?

We don’t need to sabotage the military justice system to reduce sexual assault. There are better options available. We should provide more frequent and effective training to junior leaders to help them to root out the problem. The services can also provide enhanced training to their prosecutors and establish a dedicated prosecutor track to obtain even better results at court-martial.

The military justice system is currently serving servicemembers and the nation well. Rather than dismantle it, let’s work to improve it and the tools we have to stamp out sexual assault.

A retired Army Lt. General, Thomas Spoehr is the director of The Heritage Foundation’s Center for National Defense.